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This article first appeared in WTR Daily, part of World Trademark Review, in October 2023. For further information, please go to World Trademark Review.
- ‘Wagatha Christie’ refers to the dispute between WAGs Rebekah Vardy and Coleen Rooney, which culminated in a libel trial last year
- Vardy now has a trade mark registration for WAGATHA CHRISTIE for a vast array of goods and services, as well as a pending application for WAGATHA
- The registration/application could face an invalidation challenge under Section 5(4) from the holders of earlier unregistered rights in ‘Wagatha Christie/Wagatha’
The worlds of WAGs (‘wives and girlfriends’) and IP practitioners collided when the news broke that the trade mark WAGATHA CHRISTIE had been registered in the United Kingdom, and that WAGATHA is a pending UK trade mark application. Both have reportedly been filed by Rebekah Vardy via a friend's company, London Entertainment Inc Ltd.
What is Wagatha Christie?
For those not immersed in the world of celebrity gossip, the Wagatha Christie phenomenon arose in 2019, when Coleen Rooney accused fellow football WAG Rebekah Vardy of leaking stories about her to the press, and the subsequent libel trial in summer 2022. The phrase ‘Wagatha Christie’ (a pun on Rooney's in-depth sleuthing by which she adduced that Vardy was the culprit for leaking press stories) was actually coined by 39-year-old Dan Atkinson from Kent in 2019, in a tweet which then went viral. Wagatha Christie went on to become the title of a BBC sounds podcast, it was emblazoned on T-shirts which stylist Ozzie Shah claimed he made £50,000 from, well-known brands such as Skinny Dip used the slogan on their phone case products, Wagatha Christie is the name of a West End stage play and, in more recent times, Rooney has released a three-part documentary entitled Coleen Rooney: The Real Wagatha Story on Disney+. Needless to say, it now appears to be a distinctive phrase... but is it capable of indicating origin?
Trade mark registration and application
Despite losing the defamation trial, it seems that Vardy could have the last laugh, as she now has a trade mark registration capable of stopping others from using WAGATHA CHRISTIE for a vast array of goods and services, including "publishing of scripts for theatrical use", "production of television programs", and merchandise including the more predictable "alcoholic cocktails", "cosmetics", "sunglasses", "fashion jewellery" and "fashion handbags" to the niche "household shears", "electric mug warmers" and "felt mats for Chinese calligraphy (stationery)". The application was filed in August 2022 in the name of London Entertainment, which is a company reportedly owned by a friend of Vardy's. The application originally included household linen, and these goods appear to have been opposed by Welspun UK Limited, who own the Christy towel brand. Other than for the household linen goods, the trade mark WAGATHA CHRISTIE was registered on 14 April 2023.
Most recently, Vardy appears to have applied to register the standalone WAGATHA for the same goods and services. This application was filed in September 2023.
Although highly entertaining, this registration and application do raise a number of legal issues and questions.
Capable of indicating origin?
The term ‘Wagatha Christie’ is seen as something of a cultural phenomenon, rooted in meme culture. Currently, the mark is seen by most consumers as referring to the libel case, and not as indicative of the origin of various goods and services, let alone the goods and services of Vardy’s friend’s company. After all, wasn’t Rooney the real Wagatha - not Vardy? If consumers are to understand WAGATHA CHRISTIE to denote the origin of either Vardy or Rooney, it will surely be understood to be Rooney.
These issues are not ironed out at the application stage, because of the United Kingdom’s ‘first to file’ system, and because there is no need to prove use at the point of application. In contrast, the US system runs a more thorough pre-application assessment, and can refuse on the basis of failure to function as a trade mark, where the mark as filed will not indicate origin.
Bad faith?
Under Section 3(6) of the Trade Marks Act 1994, a trade mark shall not be registered if the application is made in bad faith. Although there is no statutory definition of ‘bad faith’, court rulings have established that it includes circumstances where, at the time of the application, there existed a dishonest intention of undermining the interests of third parties or an intention to obtain exclusive rights for purposes falling outside the functions of the trade mark. It could be that this application comes under ‘trade mark squatting’, in that Vardy has applied for registered protection of a pre-existing brand in order to weaponise it against competitors (watch out Rooney!).
Additionally, an application for registration of a trade mark must state that the mark is being used by the applicant (or with their consent) in relation to the goods or services for which registration is sought, or that the applicant has a bona fide intention that it will be used in this way (Section 32(3) of the act). On the face of it, it seems unlikely that Vardy or London Entertainment have an intention to sell WAGATHA CHRISTIE or WAGATHA-branded household shears, electric mug warmers or felt mats for Chinese calligraphy.
Invalidation?
Additionally, this registration and application could face an invalidation challenge under Section 5(4) of the act from the holders of earlier unregistered rights in the phrase ‘Wagatha Christie/Wagatha’. Should any of the parties who have already used ‘Wagatha Christie/Wagatha’ for “publishing of scripts for theatrical use”, “television broadcasting” or “fashion handbags” prove that they have sufficient reputation in the phrase and that potential customers associate WAGATHA CHRISTIE with them for those particular products, they could apply to invalidate the registration.
Impact
As the registered rights in WAGATHA CHRISTIE began on 22 August 2022, no trade mark infringement action can be taken against use of the phrase before this date, or if use of the phrase is a continuation of such earlier use.
It appears that the registration has not scared off third parties already cashing in on the WAGATHA CHRISTIE goodwill, as the producer of the Wagatha Christie West End show has reportedly said that she sees "no reason why I cannot go on without changing the name of the show", but will in fact add reference to the trade mark registration in the script.
As for Rooney, the choice of title for her documentary (Coleen Rooney: The Real Wagatha Story) is interesting, in that it references only ‘Wagatha’ rather than ‘Wagatha Christie’. Could this be a strategic choice, given Vardy’s registration for WAGATHA CHRISTIE for services including “production of television programs for broadcast on mobile devices”? The documentary was officially released on Wednesday 18 October 2023, which postdates the WAGATHA CHRISTIE registration.
Although there are definitely arguments that the use of ‘Wagatha’ in the title still infringes the WAGATHA CHRISTIE registration, could it be that Rooney chose to use only one aspect of the registration so as to have some counter-arguments to a trade mark infringement claim? Vardy’s decision to file a separate application just for WAGATHA in September 2023 is also particularly interesting in light of this - is this a ‘bad-faith’ reaction to the title of the documentary?
As for now, it seems that Vardy is yet to weaponise her new trade mark registration, and she has not yet commented on Rooney’s recent documentary. It remains to be seen how long she intends to keep a low profile…